Confusing Access To Justice With Judicial Efficiency

The best news of the year is that it’s almost impossible to discuss our judicial system without mentioning access to justice. As a bonus, the plight and impact of self-represented litigants is now deemed necessary to any conversation about the courts. Some have found the best way to convey a law-related message is to wrap it with statistics on pro se litigants.

A Brennan Lecture on Access to Justice

NYU Law Review published the annual Brennan Lecture last month. This year’s honoree was Connecticut chief justice Chase T. Rogers. We were happy about last year’s lecture from New York chief justice Jonathan Lippman, and in fact Judge Rogers mentioned the big shoes he left her to fill this year.

She did not disappoint. After all, Judge Rogers has served as a Connecticut judge since 1998. She was nominated by President Barack Obama to serve on the board of the State Justice Institute. That’s the federal agency with a mandate to improve the quality and efficiency of state courts. She was also nominated by U.S. Chief Justice John Roberts to serve on the Judicial Conference of the United States, the policymaking body for federal courts. We’re talking top-drawer judicial talent here.

…we are not talking about access for access’s sake; instead, it is essential to provide a pathway for people where we can assure that justice is being achieved and not falling by the wayside because someone does not speak English, does not know what papers to file, does not know what arguments to make, or simply does not understand the purpose of the hearing.

She argued that the economic crisis, which was driving huge increases in foreclosures, debt cases and the like, had combined with technological advancement (online case law and statutes, mandatory e-filing, services like our Case Manager) to motivate average people to conduct civil litigation without the aid of lawyers. By way of example, she noted that 85% of family law matters in Connecticut currently involve a pro se litigant, as do one in every four civil matters generally, and two in every five appellate cases. Those kinds of numbers had strained the state’s courts, and courts nationwide.

Judge Rogers then put the question plainly: How do our courts maintain their role in the social compact as a branch of democratic government? How, in other words, do courts maintain the trust of the people?

We need to change the mindset that has defined, for centuries, the process by which we handle civil cases… Put another way: The foundations of the court system and the processes by which claims are resolved are outdated and require serious rethinking.

There can be no serious argument about that, and it’s exciting to see such a powerful judicial figure speak so clearly in this regard.

A Modest Proposal for Efficiency

Judge Rogers outlined some good proposals for improving access to justice, such as individual calendaring (assigning one and only one judge to a case) and judicially-assisted alternative dispute resolution. She reported on solid efforts to encourage more pro bono service, as well as more unbundled legal services, where lawyers handle only the most difficult phases of a client’s case. She described Connecticut’s LawyerCorps, funded by the state’s business community, where young lawyers were receiving fellowships to work two years at a legal aid organization. All these were positive developments.

But the “rethinking” Judge Rogers had in mind was a three-tiered system for handling civil cases based on their complexity.

Debt-collection, slip and fall, and small-claims appellate cases — where most a self-represented litigants appear — would fall into a streamlined category. These cases would have a schedule of mandatory but limited discovery, simpler rules, maximum trial length and minimal judicial involvement.

Complex cases such as medical malpractice, investment securities, class actions and other high-value claims would have open-ended discovery and whatever trial length and judicial involvement were necessary to fully explore the case.

The rest would fall into a catch-all standard category somewhere in the middle, with rules and procedures similar to the ways most civil claims are handled today.

When a litigant felt their case was on the wrong tier, he or she could file a motion to have it removed to a different tier.

Access To Justice And Efficiency — Like Oil and Water?

If adopted nationally, this proposal would undoubtedly boost the justice system’s efficiency. But it’s unclear how a tiered management scheme would help self-represented litigants or improve our access to justice. There’s an assumption here that because pro se litigants have clogged the courts, the way to serve pro se litigants is to unclog the courts.

That’s faulty logic. The best way to serve pro se litigants is to ensure each litigant has the information and services necessary to present their cases to a patient and unbiased finder of fact.

In addition, many jurisdictions already have complex litigation divisions designed to hear class actions and other claims involving large corporate interests. So Judge Rogers’ proposal would effectively create a new, albeit simplified tier for cases likely to involve self-represented litigants — essentially a small claims court for larger claims. I’ve argued in the past that special courts generally work to deprive self-represented litigants of justice, and this would be no different.

The thing is, tracking cases into tiers does nothing about the imbalance in preparation between self-represented litigants and the lawyers opposing them. That’s the biggest barrier to justice. Rather than a streamlined approach, self-represented litigants need time and resources to get up to speed on procedures, legal arguments and litigation strategy. Rather than improve access to justice, Judge Rogers’ proposal would further impede it.

While clearly not her intent, this scheme could easily work to institutionalize judicial bias against pro se litigants and impair due process. It’s important to note that a self-represented litigant whose case was moving too swiftly for fairness would bear the burden of getting their case off the “streamlined” track, with no clear standards for doing so.

My feeling is that we can’t expect lawyers and judges and courthouse staff to have all the answers. As self-represented litigants continue to shape the courts to our liking, case by case, the answers will come from us. I hope powerful officials like Chief Justice Rogers will be open to hearing those answers. I hope they are open to hearing criticisms of their own proposals from non-lawyers.

Ultimately, I’m happy to see efforts to boost access to justice, particularly for self-represented litigants, receiving so much attention.